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Case study: cross border divorce

Divorce is known to be stressful, but what if it's made more complicated by the differences between Scots Law and English Law?Morton Fraser'sPartner and Accredited Family Law Specialist, Rhona Adams, discusses what happens if you file for divorce from either side of the border.

Tom and Barbara get married. They move around the UK in pursuit of Tom's career in the insurance industry, eventually buying a family home in Surrey and a holiday cottage on Skye. They split their time between their two residences. Sadly, things go wrong and, after a marriage of more than 20 years, Tom and Barbara go their separate ways. Barbara stays in the Surrey mansion along with their two teenage children, whilst Tom escapes the rat-race for the good life on Skye.

After a year or so of living apart, they both independently conclude that it's time to draw a line under matters, sort out the money and get divorced. They launch their divorce proceedings on the same day: Tom's in Inverness Sheriff Court; and Barbara in Kingston-upon-Thames County Court.

So, which divorce proceedings take precedence? And does it really matter anyway?

The answer to the second question is, in short, yes. There is a big difference in the approach to financial provision on divorce in Scots law on the one hand, and under the law of England and Wales on the other. In some cases, the bit of the UK in which the divorce is litigated can be key.

Matrimonial Property- Splitting your Stuff

In Scotland, the law makes it very clear that only the "matrimonial property", that is to say, the asset-base built up between the date of the marriage and the date of the parties' separation, comes into the equation. Inheritances which either party may have received from a third party, and items which one or other of them owned before marriage, are firmly excluded from the exercise (assuming that they have been kept in their original form).

In England, there is no such rigid approach. The court is permitted to redistribute assets owned by one or other party before marriage, assets acquired by way of inheritance and assets built up after the date of separation. In some case the court will exclude such items but in other cases, they will come into the equation. In England, the first consideration that the courts must bear in mind is the "needs" of the parties and their children. In Scotland, it is "fair sharing".

Spousal Maintenance- Help Going it Alone

Another aspect of family law which is at variance north and south of the Border is spousal maintenance. In Scotland, it is not uncommon for ex-spouses (usually but not invariably wives) to be awarded spousal maintenance for up to three years after the date of separation, with the intention of helping them to adjust to life on their own. Longer-term maintenance is, however, uncommon. In England, by contrast, it is quite common to see "joint lives" orders for maintenance where there is marriage of a reasonably long duration (such as that of Tom and Barbara).

These are just a couple of examples of the difference in philosophical approach of the two neighbouring jurisdictions.

As to which jurisdiction "wins" in a stand-off where divorce proceedings have been initiated in each, it is not simply a question of who gets in there first. There are detailed rules which govern intra-UK jurisdiction. In summary, these provide that the court which has primary jurisdiction is the one for the place where the parties last lived together as husband and wife, assuming that one of them has continued to live there for the past 12 months.

In Tom and Barbara's case, it is all likely to rely on where they were living before the split up: Surrey or Skye…..